Tag Archives: injunction

A local authority applying for an injunction to prevent abuduction of a child

This post looks at what a local authority can do to protect a child in care if they have good reason to believe that child might be at risk of abduction by his parents. This appears to be an increasingly likely scenario as the amount and kind of information easily accessible on line continues to grow, alongside the number of support groups on social media who encourage parents to take direct action against the ‘evil’ system. One option is to apply to the High Court for an injunction against the parents, by asking the court to apply the ‘inherent jurisdiction’.

The inherent jurisdiction of the High Court has historically been described as ‘inexhaustible’ or ‘limitless’ . In essence it can be used to ‘fill in the gaps’ of existing statute and case law. However, use of the inherent jurisdiction over the years has become more restricted. Its application now must be considered in the light of existing statute, case law, and the Family Procedure Rules.

‘Wardship’ is part of the inherent jurisdiction which is most often applied to children but this is now subject to very serious statutory restrictions. Wardship cannot be used, for example, as a way to take children into state care because this would mean by-passing the necessary checks and balances set out in the Children Act 1989.Section 100 of the Children Act 1989 sets out the restrictions to the use of the inherent jurisdiction. Under section 100(3), a local authority who wants the court to exercise it must first get permission and that will only be given if :

the result which the authority wish to achieve could not be achieved through the making of any order of a kind to which subsection (5) applies; and

there is reasonable cause to believe that if the court’s inherent jurisdiction is not exercised with respect to the child he is likely to suffer significant harm.

As the local authority is a corporate body, not an individual person, it cannot apply for orders under the Family Law Act 1996. Therefore, a non molestation order could not be granted to a local authority and seeking an injunction pursuant to the inherent jurisdiction is their only likely option.

The Family Procedure Rules 2010, PD12D paragraphs 1.1 and 1.2 provide as follows:
1.1 It is the duty of the court under its inherent jurisdiction to ensure that a child who is the subject of proceedings is protected and properly taken care of. The court may in exercising its inherent jurisdiction make any order or determine any issue in respect of a child unless limited by case law or statue. Such proceedings should not be commenced unless it is clear that the issues concerning the child cannot be resolved under the Children Act 1989.
1.2 The court may under its inherent jurisdiction, in addition to all of the orders which can be made in family proceedings, make a wide range of injunctions for the child’s protection of which the following are the most common: –
(a) orders to restrain publicity;
(b) orders to prevent an undesirable association;
(c) orders relating to medical treatment;
(d) orders to protect abducted children, or children where the case has another substantial foreign element; and
(e) orders for the return of children to and from another state.

Practical matters – what court?

The inherent jurisdiction can only be exercised by the High Court so you will either need to be in the actual High Court or before a Judge who is allowed to sit temporarily as a ‘High Court’ Judge for the purposes of making such orders. This is permitted under section 9 of the Senior Courts Act 1981; such Judges are described as ‘having a section 9 ticket’.

You can get an injunction without the other side turning up to court if the matter is really urgent but in most cases the court will be keen to know what efforts you have made to let the other side know about your application. The court will need to be satisfied that the local authority have made reasonable efforts to get in touch; for example by visiting known addresses, telephoning, sending texts and/or emails.

If the parents don’t attend court, the Judge can make an injunction for a short period of time – for e.g. a week – then list another hearing to give the parents more time to attend and respond to the application.

Depending on how long ago the care proceedings were, it may also be sensible to at least inform the guardian about the application. However, it may not be necessary for the guardian to play any role in the injunction proceedings.

What should the injunction say?

Injunctive orders must be:

capable of enforcement and

must be necessary and proportionate to the risk of harm identified.

So be careful of vague orders or ones that go beyond what is needed to keep the child safe. Much will depend on the facts of the particular case before you and the risk of harm faced by the child. For example, in Birmingham City Council v Sarfraz Riaz and Others[2014] EWHC 4247 (Fam). Keehan J considered the case of Re J (A Child) [2013] EWHC 2694 (Fam) where the President observed that court had a duty to consider whether the terms of the proposed orders were fair, necessary and proportionate to the facts of the case and capable of being enforced.

Keehan J concluded in the case before him that it was appropriate in all the circumstances to make very wide injunctive orders to prevent child sexual exploitation.

The inherent jurisdiction is clearly wide and versatile enough to compass prohibiting respondents from accessing a wide geographical area. For example, consider the decision of the then President of the Family Division the late Sir Nicholas Wall, in CW & Ors v. TW & Ors [2011] EWHC 76 (Fam), who made an order banning the respondent from the country of Wiltshire ‘save for specified purposes’ .

Every injunction should have the following paragraphs included

NOTICE TO THE RESPONDENT [Name here]
You should read the terms of this order very carefully. You are advised to consult a solicitor as soon as possible.
An application was made on [this date] by the local authority to the Judge. The Judge heard the application in the absence of the Respondent (if applicable) and read the evidence in Schedule 1 to this order (set out what evidence the Judge considered here)

Variation and discharge
The Respondent or anyone notified of this order may apply to the court at any time to vary or discharge the order (or so much of it that effects that person) but anyone wishing to do so must first inform the applicant local authority

Communication with the Court
All communications about this order should be sent to [the court that made the order]

PENAL NOTICE
To [the Respondent] You must obey the instructions contained in this order. If you do not, you will be guilty of contempt of court and you may be sent to prison, fined or your assets may be seized.
This penal notice is attached to the following paragraphs of this order [set out appropriate paragraphs]
Any other person who knows of this order and does anything which helps or permits the Respondent to breach the terms of this order may also be held in contempt of court and may be imprisoned, fined or have their assets seized.

There is NO power of arrest attaching to an injunction under the inherent jurisdiction

It seems clear now that this cannot be done, which does weaken the usefulness of the injunction. If it is breached, the local authority must apply to enforce it in the usual way, by asking the court to issue a warrant for the parent’s arrest for contempt of court. The parent will then be bought to court and asked to explain why they breached the order. This is provided for in the paragraph relating to a penal notice, set out above.

In Re FD (Inherent Jurisdiction: Power of Arrest)[2016] EWHC 2358 (Fam) Keehan J considered the relevant authorities relating to attaching a power of arrest to such an injunction and concluded that this was not permissible. He refered to the judgement of the Court of Appeal in Re G (Wardship) (Jurisdiction: Power of Arrest) [1983] 4 FLR 538 which had not been drawn to the attention of courts in previous cases and thus had been over looked.

Keehan J cited the leading judgment of Ormrod LJ:

for my part I would hesitate a very long time indeed at this stage in the evolution of our law to introduce or invent a wholly new remedy in wardship and, having regard to the problems that have arisen under s.2 of the Domestic Violence and Matrimonial Proceedings Act 1976 and the difficulties that are inherent in that, I should be even more reluctant to extend, by some form of analogy, a power in a judge in wardship to grant a power of arrest. In fact, I think it must be constitutionally fundamental that only Parliament or the old common law can create a power in one citizen to arrest another citizen.

For my part, I cannot see how a judge could have power, other than a statutory power to attach provisions such as this to an injunction… Of course it would be great comfort, not only to the mother in this case but, I should think, to the judge himself to feel that there was this further protection for this child. But that is not sufficient ground for inventing what is a most far-reaching interference with the liberty of the subject, the father, and putting a quite extravagant power, it seems to me, in the hands of either the tipstaff or constable in question.’

Claims against public bodies for breach of the Human Rights Act 1998

Introduction

The Human Rights Act (HRA) was passed to give direct effect to the Articles of the European Convention into domestic law. Prior to the HRA, if you wanted to claim that your human rights had been breached you had to take out an action in the European Court of Human Rights in Strasbourg. Now, it is unlawful for any public body – including the courts and local authorities – to act in a way which is incompatible with a Convention right, unless they have no choice because they have to obey current statute law.

However, applicants who are receiving legal aid will need to consider carefully the implications of the statutory charge on any award of damages – this is discussed below. It seems likely that in most cases, pursuing an HRA application is simply not commercially viable. However, there are some avenues worth exploring and these are discussed below.

The most likely Articles of the ECHR which are in play in regard to child protection cases are:

Article 8 – the right to respect for family and private life;

Article 6 – the right to a fair hearing.

For further consideration of Article 8 and its ambit see our post on Article 8 and proportionality.For further consideration of Article 3 in care proceedings, see this post. For a list of cases and amounts of money awarded, scroll to the end of this post.

The requirements of the Human Rights Act 1998

What is an unlawful act and what is a public authority?

‘Unlawful Act’ is defined under section 6 (1) of the HRA. It is unlawful for a public authority to act in a way incompatible with a ECHR right UNLESS it doesn’t have a choice because of the way the domestic law is written.

A ‘public authority’ includes a court/tribunal or any person who carries out functions of a ‘public nature’ BUT it excludes the Houses of Parliament.

Who can make an application under the HRA?

Section 7 provides that a person can bring proceedings if they are, or would be a ‘victim’ of the unlawful act. There is a distinction between a ‘free standing’ application [section 7(1)(a)] and relying on your Convention rights in existing proceedings [section 7(1)(b)].

It is now clear that the court will expect formal applications made according to the Civil Procedure Rules NOT the FPR and this will have consequences for many issues, not least the role of the children’s guardian. For a clear analysis of the necessary procedural requirements, it is worth reading carefully the judgment of Cobb J in SW & TW (Children : Human Rights Claim: Procedure) (Rev 1) [2017] EWHC 450 (Fam) (08 March 2017).

What remedy can you get?

Section 8 of the HRA gives the court a discretion to remedy the breach of your human rights; the remedy must be ‘just and appropriate’.

This can include damages, if the court is satisfied this is necessary ‘to afford just satisfaction’. The court must take into account the principles applied by the European Court about awards of damages – but the problem with this is that the jurisprudence from the ECtHR is deliberately opaque about what makes the quantum of damages ‘just satisfaction’. Each case will depend on its own facts.

Article 41 of the ECHR

This sets out the requirement for ‘just satisfaction’ on violation of a ECHR right. For useful discussion about the application of Article 41, see paragraph 143 onwards of the judgment of the European Court in the case of P, C and S v UK[2002].

General principles about awards of damages pursuant to Article 41

A clear causal link must be established between the damage claimed and the violation alleged. The Court will not be satisfied by a merely tenuous connection between the alleged violation and the damage, nor by mere speculation as to what might have been.

Compensation for damage can be awarded in so far as the damage is the result of a violation found. No award can be made for damage caused by events or situations that have not been found to constitute a violation of the Convention, or for damage related to complaints declared inadmissible at an earlier stage of the proceedings.

The purpose of the Court’s award in respect of damage is to compensate the applicant for the actual harmful consequences of a violation. It is not intended to punish the Contracting State responsible. The Court has therefore, until now, considered it inappropriate to accept claims for damages with labels such as “punitive”, “aggravated” or “exemplary”.

How have the courts approached damages under the HRA 1998?

The concept of ‘just satisfaction’.

The first case to consider damages under the HRA 1998 was Anufrijeva v London Borough of Southwark in 2003. At para 49 the court noted the conclusions of the Law Commission in its report on Damages under the Human Rights Act 1998 which suggested that the obvious analogy for a claim for damages under the HRA is a claim against a public authority in tort, such as negligence. But this analogy cannot be drawn too strictly as there are distinctions between the purpose behind an award of damages in tort and under the HRA.

damages are recoverable ‘as of right’ in a negligence claim (tort), but are at the court’s discretion in a HRA claim;

the purpose behind the damages claim is different; in negligence this is to put the claimant back in the position he would have been in without the negligent act, whereas in HRA claims the purpose is to provide ‘just satisfaction’;

That ‘just satisfaction’ may be provided by dealing with the HR breach, not necessarily compensating someone with money. The European Court has often found that in cases where there was a procedural, rather than substantive breach, a simple declaration that the claimant’s human rights were breached is in fact sufficient ‘just satisfaction’.

In the case of H (A Child – Breach of Convention Rights: Damages)[2014] the court was very clear that in the circumstances of this case ‘just satisfaction’ would NOT be achieved by a simple declaration that the parents’ rights had been breached. See paragraph 82:

It was not until June 2014 that these parents eventually managed to secure the return of their daughter to their care, exactly a year after she was placed with Mr and Mrs B. Whilst it is true that during that year the parents were having regular contact, supervised contact at a local authority contact centre is far removed from the joys of fulltime, unsupervised care of one’s own child. The residential assessment which began in June 2014 could have begun a year earlier. The cognitive assessment of the parents, not finally obtained until May 2014, could have been obtained months earlier. Unlike the parents in the Coventry case, these parents’ have suffered a loss of time with their daughter which was both unnecessarily lengthy and deeply distressing.

How should damages be assessed? And what is an appropriate award?

The difficulty is in situations where the harm suffered by the claimant is not one that can easily be measured in money – for example, loss of earnings is a lot easier to measure than being very upset or anxious about something. There is little guidance from the European authorities, save that the court tends to look at the nature and seriousness of the breach complained about, and the claimant’s own behaviour.

The European Court has also recognised ‘loss of relationship’ as another form of intangible injury – that is the loss of love and companionship which occurs when a family relationship is disrupted by breach of Article 8.

This is a clear difference between the kinds of damages that may be awarded for breach of contract or tort in the domestic courts, which may not recognise many of these types of loss or would require much stricter proof to be satisfied they had occurred. Some types of loss are going to be much more easily quantified than others.

The court in H (A Child) noted that there was not much assistance from previous cases in determining what amount should be awarded. In this case, each parent was awarded £6,000. See para 87:

Whilst the authorities referred to are of some small assistance, there are too few to be able to be confident that they indicate the broad parameters for making an assessment. In any event, it must, of course, be remembered that every case is different. Every case turns on its own facts. The assessment of damages in these cases is highly fact sensitive.

Insufficient involvement of the parent or child in the decision making process

Other procedural failures.

WARNING: It is likely that the Court of Appeal decision in London Borough of Hackney v Williams & Anor[2017] is a clear attempt to row back from what appears to be ever increasing amounts awarded in damages for HRA claims. The Court decided that there had been no breach in this case so no damages fell to be awarded – BUT if they had, the Court of Appeal were clear that the £10K awarded at first instance was simply too high. For further discussion of this case, see this post.

What did the Law Commission say?

The Law Commission report considered the damages awarded by the European court at paras 3.26 and 3.27 of its report:

The Strasbourg Court has made awards for non-pecuniary loss in respect of a wide range of intangible injuries. Non-pecuniary awards have included compensation for pain, suffering and psychological harm, distress, frustration, inconvenience, humiliation, anxiety and loss of reputation. There appears to be no conceptual limit on the categories of loss which may be taken into account, and the Strasbourg Court is often prepared to assume such loss, without direct proof…

The implication of the costs of proceedings

Guidance and warning from Anufrijeva

The fundamental principle underlying the award of compensation is that the court should achieve what it describes as restitution in integrum. The applicant should, in so far as this is possible, be placed in the same position as if his Convention rights had not been infringed. Where the breach of a Convention right has clearly caused significant pecuniary loss, this will usually be assessed and awarded. The awards of compensation to homosexuals, discharged from the armed forces, in breach of article 8, for loss of earnings and pension rights in Lustig-Prean and Beckett v United Kingdom (2000) 31 EHRR 601 and Smith and Grady v Untied Kingdom (2000) 31 EHRR 620 are good examples of this approach. The problem arises in relation to the consequences of the breach of a Convention right which are not capable of being computed in terms of financial loss.

The court in Anufrijeva suggested that in order to help work out what was an appropriate level of damages, guidance could be taken from levels of damages awarded in respect of torts, awards made by the Criminal Injuries Compensation Board and by the Parliamentary Ombudsman and the Local Government Ombudsman. But this guidance could only be ‘rough’. The court also sounded this note of caution:

The reality is that a claim for damages under the HRA in respect of maladministration, whether brought as a free-standing claim or ancillary to a claim for other substantive relief, if pursued in court by adversarial proceedings, is likely to cost substantially more to try than the amount of any damages that are likely to be awarded. Furthermore, as we have made plain, there will often be no certainty that an entitlement to damages will be established at all.

The court was alarmed at how expensive it had been to bring this action and set out guidance for future cases:

The courts should look critically at any attempt to recover damages under the HRA for maladministration by any procedure other than judicial review in the Administrative Court.

The claimant will need to explain why it isn’t more appropriate to use other routes of resolving the complaint, such as an internal complaints procedure or a claim to the Local Government Ombudsman.

other forms of dispute resolution are encouraged and it is hoped that any such future claims can be dealt with quickly by a judge reading the evidence.

These warnings have been repeated in later cases, most notably by Cobb J in SW & TW [2017], cited above.

Other issues regarding HRA applications

Limitation periods: You must make your claim within a year if its a ‘free standing’ application.

But the court does have discretion to extend that time. Section 7(5) provides that:

‘(5) Proceedings under subsection (1)(a) must be brought before the end of—
(a) the period of one year beginning with the date on which the act complained of took place; or
(b) such longer period as the court or tribunal considers equitable having regard to all the circumstances,
but that is subject to any rule imposing a stricter time limit in relation to the procedure in question.

Injunctions under the Human Rights Act

It is possible to apply for an injunction under the HRA 1998 to prevent a public body from acting unlawfully. See our post about the LA attempting to remove a child from home who was there under a care order. The court confirmed that the parents should apply for an injunction to prevent this.

I am satisfied that the Family Court has the power to make an award of damages under s.8(2) of the Human Rights Act 1998. I am equally satisfied that the authorities to which I have referred continue to apply and that where, in the course of care proceedings, relief is sought under section 8, that relief must be sought within the care proceedings pursuant to s.7(1)(b) of the 1998 Act and not by bringing freestanding proceedings under s.7(1)(a).

BUT note what was said by Keehan J in the Northamptonshire case (see below) about making a separate application to avoid the full impact of the legal aid statutory charge absorbing any award of damages. No doubt this area of law will continue to develop, so watch this space.

The impact of the legal aid charge – can it ever be worth making a claim?

It is now beyond doubt that the Legal Aid Agency will seek to recover its costs from the amount of damages awarded. This is set out in the Statutory Charge Manual [2014]. Thus, if an application is made under the HRA in existing proceedings – as the court advises should happen – an applicant is likely to have already incurred significant legal costs which are likely to wipe out any award of damages.

The purpose of the Statutory Charge, as set out in the Manual is as follows.

put legally aided individuals as far as possible in the same position as successful non-legally aided individuals (who are responsible at the end of their cases to pay their own legal costs if their opponent in the litigation does not, or is unable, to pay them). The statutory charge converts legal aid from a grant into a loan. (See Davies v. Eli Lilly & Co [1987] 3 All ER 94 at 97 to 98).

ensure that legally aided individuals contribute towards the cost of funding their cases so far as they are able; and

deter legally aided individuals from running up costs unreasonably by giving them a financial interest in how much money is being spent.

There are exemptions from the charge – see page 31 onwards of the manual – but the HRA does not appear. The Manual itself runs to 108 pages which gives you an idea as to its complexity.

The court dealt with this from para 46 onwards. The parents and the child were each awarded £3,750 as ‘just satisfaction’ after the child was removed at birth for about three weeks and the LA later conceded they had no evidence to justify this. However, the court was clear that the damages were likely to be eaten up by the statutory charge and was critical of the failure by the parties to adopt a proportionate approach to this issue.

Can anything be done to avoid the statutory charge?

Free Standing applications

It seems sensible to consider making a free standing application under the HRA which is not then linked to the costs incurred in any other proceedings, as this may help keep any costs at a lower level. However, applicants will need to be very careful of criticisms levelled by the courts at those who do not raise human rights issues in their existing proceedings.

See also the case of P v a Local Authority [2016] EWHC 2779 for a decision where the statutory charge was held NOT to apply to an award of damages. There is commentary on this case by suesspiciousminds who points out that this case probably won’t be a ‘road map’ for future cases as there were two major differences between this case and other HRA cases: namely that the HRA breach happened AFTER the Court hearing and not really in connection with the Court hearing at all and the LAA had been asked to fund a damages claim and had refused.

Section 17 of the Children Act 1989

Further discussion with colleagues suggests that the LA could pay money under section 17 of the Children Act 1989 which deals with the provision of services to children in need and their families; section 17(7) allows the LA to make payments in cash. There is also the general wellbeing provision of the Local Government Act 2000 – section 2(4) allows the LA to give financial assistance to any person.

However, payments made under either Act are unlikely to be an attractive option to LAs as they would come out of social work budgets whereas a court order to pay damages would be met by insurance. Nor is it enforceable, if the LA say they will pay but then go back on their offer.

Costs orders

Give consideration to asking the court to make a costs order against the other side. It is now clear that these applications are governed by the CPR and therefore the starting point for costs will be that the loser pays. However you will need to consider your own litigation conduct and attempt to make realistic and genuine attempts to settle.

Making a complaint pursuant to section 26 of the Children Act 1989

A colleague contacted me to say that in one of her cases, the LA offered the children £1,500 each by way of ex gratia payments following a complaint made under section 26 after the care proceedings had concluded. This money will be held in trust until the children are 18.

The only problem with this approach is that for those acting on behalf of the child there’s little room for negotiation over the amount of money offered, because once proceedings have finished the children’s guardian doesn’t have any standing to pursue a HR application

Damages awarded in other cases

P, C, S v the UK[2002] the European court awarded each parent €12,000 for breaches of their Article 8 and 6 rights in a case which involved removal of a baby at birth. This case also has some useful commentary as to how damages should be assessed.

GD & BD (Children) [2016] 10-18 October 2016 EWCH 3312 – example of very poor police, LA and legal practice, described by Suesspiciousminds as ‘the worst case of the year’. £10,000 awarded to the mother and £5,000 to each child.

London Borough of Hackney v Williams and Anor[2017] – Court of Appeal sound the warning that £10K awarded at first instance was too high (in the event the court did not find a breach of statutory duty so no damages were awarded at all)

CZ (Human Rights Claim: Costs) [2017] EWFC 11 – £3,750 to each parent and child for unjustified removal at birth for about 3 weeks. However, costs likely to be completely absorbed by the statutory charge – publicly funded costs in region of £100K.

Further reading

For an interesting overview, see this article by barrister Julie Stather in Family Law Week

It is possible that a care order can be made but the care plan is for the child to remain at home. This used to be quite unusual but may become more common as the requirement is now that care proceedings must conclude as soon as possible or in any event take no longer than 26 weeks.

The difficulty with this scenario, is what happens if the LA don’t think things are going well at home and they decide they want to remove your child?

What happens if the LA want to remove your child after final care order is made?

However, this is not an option that is useful in an urgent situation because takes time for the necessary reports to be written and evidence gathered. Further, parents won’t automatically get help with paying for lawyers.

What can the parents do to act quickly in this situation?

Injunctions under the Human Rights Act 1998

This issue was death with in the Matter of DE (A Child) in 2014. There were concerns about how DE’s parents would cope looking after him as both parents had learning disabilities. However, with a package of support and the help of extended family, DE was able to live with his parents from birth.

In November 2012 when D was aged 11 months, the court made a final care order supporting the LA plan that DE remain at home with his parents but subject to a care order. This would be kept under review – if all was going well, the LA might apply for a supervision order instead. If things were not going well, the LA would remove DE from his parent’s care.

The LA became increasingly worried about the care that DE’s parents were giving him, considering that the parents needed constant prompting about issues of safety both in and outside the home. In March 2014 the LA told the parents that they were going to remove DE in a month’s time.

The father applied for an injunction under section 8(1) of the Human Rights Act 1998 to prevent the LA removing DE as there was no urgent need to do so. The LA responded that they were entitled to act in this way as they had a care order and the responsibility of making decisions for the child had therefore passed to them; the court could only intervene if what the LA was doing was unlawful. The Judge felt he had no choice but to refuse the father’s application for an injunction and DE was removed.

The father appealed and Mr Justice Baker concluded that the first judge was wrong to say he could not go behind the care order. The court did have the power to make an injunction to stop the LA removing the child.

Although the LA has the power under section 33(3) of the Children Act 1989 to determine how others may exercise their parental responsibility for child, under section 33(4) they can only exercise that power if to do so is necessary to safeguard or promote the child’s welfare.

Therefore a LA should only remove a child from home under a care order if removal meets the requirement of necessity. If removal is not necessary, the LA are proposing to act in a way which breaches Article 8 of the ECHR – and the court has the power to stop them by way of injunction using the Human Rights Act 1998.

The court said:

34. To my mind, where a care order has been granted on the basis of a care plan providing that the child should remain at home, a local authority considering changing the plan and removing the child permanently from the family is obliged in law to follow the same approach. It must have regard to the fact that permanent placement outside the family is to be preferred only as a last resort where nothing else will do. Before making its decision, it must rigorously analyse all the realistic options, considering the arguments for and against each option. This is an essential process, not only as a matter of good practice, but also because the local authority will inevitably have to demonstrate its analysis in any court proceedings that follow the change of care plan, either on an application for the discharge of the care order or an application for placement order under the Adoption and Children Act 2002. This process of rigorous analysis of all realistic options should be an essential feature of all long-term planning for children. And, as indicated by Munby J in Re G, the local authority must fully involve the parents in its decision-making process.

35. While this process is being carried out, the child should remain at home under the care order, unless his safety and welfare requires that he be removed immediately. This is the appropriate test when deciding whether the child should be removed under an interim care order, pending determination of an application under s.31 of the Children Act: Re L-A (Children) [2009] EWCA Civ 822. The same test should also apply when a local authority’s decision to remove a child placed at home under a care order has led to an application by the parents to discharge the order and the court has to decide whether the child should be removed pending determination of the discharge application. As set out above, under s.33(4) of the 1989, the local authority may not exercise its powers under a care order to determine how a parent may exercise his or her parental responsibility for the child unless satisfied it is necessary to do so to safeguard or promote the child’s welfare. For a local authority to remove a child in circumstances where its welfare did not require it would be manifestly unlawful and an unjustifiable interference with the family’s Article 8 rights.

36. In submissions before the district judge, and before this court, it was argued on behalf of the local authority that its removal of D from the family home was lawful simply by reason of the care order. That submission is fundamentally misconceived. The local authority’s removal of the child would only be lawful if necessary to safeguard or promote his welfare. Any other removal, or threatened removal, of the child is prima facie unlawful and an interference of the Article 8 rights of the parents and child. In such circumstances, the parents are entitled to seek an injunction under s.8 of the HRA.

The court ordered a further hearing in a few weeks time in order to consider whether DE should be returned to his parents’ care whilst all the necessary evidence was gathered to proceed with an application to discharge the care order.

Guidance from the court for future cases.

(1) In every case where a care order is made on the basis of a care plan providing that a child should live at home with his or her parents, it should be a term of the care plan, and a recital in the care order, that the local authority agrees to give not less than fourteen days notice of a removal of the child, save in an emergency. I consider that fourteen days is an appropriate period, on the one hand to avoid unnecessary delay but, on the other hand, to allow the parents an opportunity to obtain legal advice.

(2) Where a care order has been granted on the basis of a care plan providing that the child should remain at home, a local authority considering changing the plan and removing the child permanently from the family must have regard to the fact that permanent placement outside the family is to be preferred only as a last resort where nothing else will do and must rigorously analyse all the realistic options, considering the arguments for and against each option. Furthermore, it must involve the parents properly in the decision-making process.

(3) In every case where a parent decides to apply to discharge a care order in circumstances where the local authority has given notice of intention to remove a child placed at home under a care order, the parent should consider whether to apply in addition for an injunction under s.8 of the HRA to prevent the local authority from removing the child pending the determination of the discharge application. If the parent decides to apply for an injunction, that application should be issued at the same time as the discharge application.

(4) When a local authority, having given notice of its intention to remove a child placed at home under a care order, is given notice of an application for discharge of the care, the local authority must consider whether the child’s welfare requires his immediate removal. Furthermore, the authority must keep a written record demonstrating that it has considered this question and recording the reasons for its decision. In reaching its decision on this point, the local authority must again inter alia consult with the parents. Any removal of a child in circumstances where the child’s welfare does not require immediate removal, or without proper consideration and consultation, is likely to be an unlawful interference with the Article 8 rights of the parent and child.

(5) On receipt of an application to discharge a care order, where the child has been living at home, the allocation gatekeeper at the designated family centre should check whether it is accompanied by an application under s.8 of HRA and, if not, whether the circumstances might give rise to such an application. This check is needed because, as discussed below, automatic legal aid is not at present available for such applications to discharge a care order, and it is therefore likely that such applications may be made by parents acting in person. In cases where the discharge application is accompanied by an application for an order under s.8 HRA, or the allocation gatekeeper considers that the circumstances might give rise to such an application, he or she should allocate the case as soon as possible to a circuit judge for case management. Any application for an injunction in these circumstances must be listed for an early hearing.

(6) On hearing an application for an injunction under s.8 HRA to restrain a local authority removing a child living at home under a care order pending determination of an application to discharge the care order, the court should normally grant the injunction unless the child’s welfare requires his immediate removal from the family home.

For further discussion about this case and its implications, see this blog post from suesspicsiousminds.